Citation Nr: 9909466
Decision Date: 04/06/99 Archive Date: 04/16/99
DOCKET NO. 96-13 510 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to an effective date earlier than February
27, 1995, for the assignment of a 10 percent rating for
service-connected tinnitus.
2. Whether new and material evidence has been submitted to
reopen a claim of service connection for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Shawkey
INTRODUCTION
The veteran served on active duty from July 1950 to August
1953.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 1995 RO rating decision that denied
a compensable rating for the veteran's service-connected
tinnitus, and denied his application to reopen a claim of
service connection for hearing loss. This matter also comes
to the Board on appeal from a February 1996 rating decision
that assigned the veteran a 10 percent rating for tinnitus,
effective on February 27, 1995.
FINDINGS OF FACT
1. In October 1989 the RO assigned the veteran a
noncompensable rating for service-connected tinnitus. This
rating is final.
2. The veteran filed a claim for a compensable rating for
tinnitus on February 27, 1995.
3. It is ascertainable based on the facts that the veteran
met the schedular criteria for a compensable (10) percent
rating for tinnitus during the year preceding his February
27, 1995 claim for an increase.
4. In a July 1989 rating decision, the RO denied service
connection for bilateral hearing loss; the veteran was
provided notice of the decision and of his appellate rights,
did not appeal this determination, and the decision became
final.
5. Evidence added to the record since the July 1989 rating
decision is not cumulative or redundant, is relevant and
probative, and, when viewed in conjunction with the evidence
previously of record is so significant that it must be
considered in order to fairly decide the merits of the case.
6. The veteran's claim of service connection for bilateral
hearing loss is plausible.
CONCLUSIONS OF LAW
1. The assignment of an effective date of February 27, 1994,
for a 10 percent rating for service-connected tinnitus is
warranted. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400
(1998).
2. Evidence received since the July 1989 RO decision denying
service connection for bilateral hearing loss is new and
material; and the veteran's claim is reopened. 38 U.S.C.A.
§§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1998).
3. The veteran has submitted evidence of a well-grounded
claim of service connection for bilateral hearing loss.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran's service records show that he had been assigned
to an infantry division. His July 1950 enlistment
examination report and his August 1953 separation examination
report show that he had hearing acuity of 15/15 for the
whispered voice in each ear. It is also shown on his
separation examination report that he had tinnitus in the
right ear.
In May 1989 the veteran filed a claim of service connection
for bilateral hearing loss and tinnitus.
In a July 1989 rating decision, the RO granted service
connection for tinnitus and assigned a noncompensable rating.
Also in this decision the RO denied service connection for
bilateral hearing loss.
In August 1989 the RO received a private audiological report
dated in May 1988. This report contains an audiogram in graph
form. The RO also received a hearing disability medical
report from a vocational rehabilitation department.
According to this report, the veteran had speech reception of
25 decibels on the right and 20 decibels on the left. Speech
discrimination was 96 percent correct in each ear. The
veteran was diagnosed as having sensorineural loss probably
aggravated by past noise trauma. Hearing aids were
recommended.
A September 1992 VA audiological record shows that the
veteran was being seen for a hearing aid evaluation. It also
shows that he was being issued binaural hearing aids.
In December 1992 the veteran filed a claim for a compensable
evaluation for service-connected tinnitus.
In a July 1993 rating decision, the RO confirmed the
veteran's noncompensable rating for service-connected
tinnitus.
On February 27, 1995, the veteran filed a VA claim for
"hearing problems".
The RO received private medical records in April 1995 that
show treatment from 1979 to 1987 for problems unrelated to
those currently on appeal.
In an August 1995 statement, the veteran said that he was
being treated at a VA medical facility for tinnitus and
hearing loss and that these "injuries" were incurred in
service. He also requested that he be reevaluated for his
"service-connected 'HEARING LOSS'".
In August 1995, the veteran underwent a brain magnetic
resonance imaging (MRI) due to marked unilateral
sensorineural hearing loss. The impression included a normal
MRI of the internal auditory canal with no evidence for
acoustic neuroma. Evaluation of the acoustic pathway from
the labyrinth level to the superior temporal gyrus was
unremarkable.
A September 1995 VA treatment record from the ear, nose and
throat clinic shows that the veteran had severe sensorineural
hearing loss in the right ear with 5 to 10 decibel changes in
the past year. An assessment was given of severe
sensorineural hearing loss. The veteran requested
replacement hearing aids at that time.
On file is a September 1995 VA audiogram in graph form.
According to the audiogram report, speech discrimination was
48 percent correct in the right ear and 44 percent correct in
the left ear.
In a November 1995 rating decision, the RO continued the
veteran's noncompensable rating for tinnitus and denied his
application to reopen a claim of service connection for
bilateral hearing loss.
A November 1995 VA audiology record notes that hearing aids
had been recommended during a recent audiology evaluation.
The record also notes that impressions for binaural custom
hearing aids were being obtained that day.
Findings from a VA audiology examination in February 1996
revealed puretone threshold decibel levels of 20, 35, 50, 80
and 80 in the veteran's right ear and 25, 35, 40, 70 and 80
decibels in his left ear at 500, 1,000, 2,000, 3,000 and
4,000 hertz, respectively. The average puretone decibel loss
was 61 in the right ear and 56 in the left ear. Speech
discrimination scores using the Maryland CNC word list was 64
percent in the right ear and 76 percent in the left ear. The
veteran was diagnosed as having a sensorineural loss to
varying degrees from 1,000 to 4,000 hertz in both ears.
In February 1996 the RO received VA medical records showing
treatment in January 1993 related to gastrointestinal
complaints. Also in February 1996 the RO received duplicate
copies of a VA audiogram dated in September 1995.
In a February 1996 decision, the RO increased the veteran's
service-connected tinnitus from 0 to 10 percent disabling,
effective February 27, 1995. Also in this decision the RO
continued to deny the veteran's application to reopen a claim
of service connection for bilateral hearing loss. The
veteran was informed of this decision in June 1996.
In the veteran's June 1996 notice of disagreement, he
requested retroactive payment back to the date that he filed
his initial claim.
At a hearing before a traveling member of the Board in
October 1998, the veteran testified that his military
occupational specialty in service had been that of an
infantry rifleman and that his duties had exposed him to loud
noises for extended periods of time. He said that he had
been exposed to concussion caused by exploding artillery,
mortar, or grenades. He said that he had been a right handed
shooter and did not wear hearing protectors in service. He
said that he did not seek medical attention for hearing loss
in service, but that his hearing was worse when he left
service than when he entered service. He said that he had
been treated for hearing loss by a state vocational
rehabilitation department who related his hearing loss to
military service. More specifically, he said that he had
been fitted with hearing aids for the first time by the
vocational rehabilitation department and that the medical
professionals kept asking him if he had been around noises
and if he had been in the military. He said that after
service he worked as a wall paper hanger and painter and that
this job did not expose him to a lot of noise. He said that
he had since retired from work. He said that he was not
being treated by anyone other than VA. The veteran said that
after 1989 he had mentioned his tinnitus while being treated
at VA medical centers.
In October 1998 the veteran submitted a medical note from a
private physician. This physician said that he had seen the
veteran (in April 1996) and that cerumen had been cleaned.
The physician also said that the veteran had a mild to severe
sensorineural loss in both ears with tinnitus. Also in
October 1998 the veteran submitted information from the
American Tinnitus Association. According to this
information, "in most cases tinnitus [was] associated with
some hearing loss."
II. Legal Analysis
Earlier Effective Date
The veteran's claim for an effective date for service-
connected tinnitus earlier than February 27, 1995, is well
grounded, meaning not inherently implausible. All relevant
facts have been properly developed and, therefore, VA's duty
to assist the veteran has been satisfied. 38 U.S.C.A.
§ 5107(a).
The regulation governing the assignment of an effective date
for an award of increased compensation is contained in
38 C.F.R. § 3.400(o)(2) (1998), which provides:
The effective date of an award of
increased compensation shall be the
earliest date as of which it is factually
ascertainable that an increase in
disability had occurred if claim is
received within one year from such date
otherwise, the effective date will be the
date of VA's receipt of the claim. See
also 38 U.S.C.A. § 5110(b)(2) (West 1991)
(to the same effect).
Monetary payments based on an award or an increased award of
compensation dependency and indemnity compensation, or
pension may not be made to an individual for any period
before the first day or the calendar month following the
month in which the ward or increased award becomes effective.
38 U.S.C.A. § 5111 (West 1991); 38 C.F.R. § 3.31 (1998).
In July 1989 the RO assigned the veteran a noncompensable
rating for tinnitus. This rating was increased to 10 percent
in February 1996 and was made effective on February 27, 1995.
The veteran contends that he should be entitled to the 10
percent rating back to the date of his original claim, in
1989. Although the veteran filed a notice of disagreement
with the July 1989 RO decision, which was followed by a
statement of the case in October 1989, the veteran did not
thereafter submit a substantive appeal on this issue.
Consequently, an appeal of the July 1989 was never perfected,
and the July 1989 RO decision is final. 38 C.F.R. §§ 20.200,
20.1103. Furthermore, since new claims for an increase may
be not adjudicated on the same factual basis as existed when
the prior final rating decision was entered, consideration
must be given to claims filed after the July 1989 final
decision. Thus, the veteran's contention that he is entitled
to an effective date back to May 1989 when he originally
filed a service connection claim for tinnitus is not feasible
since this date precedes the date of the RO's final decision
in July 1989.
The provisions of 38 U.S.C.A. § 5110(b)(2) (West 1991) refer
to the date an "application is received". 'Application' is
not defined in the statue. However, in regulations, 'claim'
and 'application' are considered equivalent and are defined
broadly to include 'a formal or informal communication in
writing requesting a determination of entitlement, or
evidencing a belief in entitlement, to a benefit." Servello
v. Derwinski, 3 Vet. App. 196, 198 (1992) (citing 38 C.F.R.
§ 3.1(p) (1991)). The date of outpatient or hospital
examination or date of admission to a VA or uniformed
services hospital will be accepted as the date of receipt of
a claim. These provisions apply only when such reports
relate to examination or treatment of a disability for which
service-connection has previously been established or when a
claim specifying the benefit sought is received within one
year from the date of such examination, treatment or hospital
admission. 38 C.F.R. § 3.157(b)(1) (1998).
In the veteran's case, no such communication for an increased
rating was received after the July 1989 RO decision until
February 27, 1995, at which time the veteran filed a claim
for "hearing problems". Although the veteran testified
that he complained of tinnitus at VA medical facilities after
his initial claim in 1989, there is no evidence of these
complaints in his records. VA records dated in 1992 reflect
complaints for other ailments, including hearing loss, but do
not reflect complaints for tinnitus.
Having decided that claims for an increased rating were
constructively filed no sooner than February 1995,
consideration must now be given to whether an effective date
for a 10 percent evaluation may be assigned any earlier than
this date. In order to be entitled to an earlier effective
date, the evidence would have to show that the veteran's
entitlement to a 10 percent disability rating was factually
ascertainable prior to February 27, 1995 (provided that the
claims were received within one year of the increase).
38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v.
Brown, 10 Vet. App. 125 (1997).
According to the provisions of 38 C.F.R. § 4.87a, Diagnostic
Code 6260, a compensable (10) percent rating is warranted for
tinnitus if it is persistent and a symptom of head injury,
concussion or acoustic trauma. Based on a VA examination in
February 1996, the examiner stated that the veteran had
bilateral tinnitus that was constant. Regarding the onset of
this disability, he relayed the veteran's report of having
the condition ever since his separation from service. He
also relayed the veteran's report of a history of noise
exposure to big guns and artillery.
Based on the veteran's assignment to an infantry division in
service and his testimony of noise exposure from artillery,
his diagnosis of tinnitus on the right at separation from
service, his complaint of having tinnitus ever since, and the
VA examiner's opinion in February 1996 that the tinnitus is
constant, it is factually ascertainable that he satisfied the
criteria for a 10 percent rating for tinnitus during the year
preceding his February 27, 1995, claim for an increase.
Consequently, he is entitled to an earlier effective date of
February 27, 1994 for the assignment of a 10 percent rating
for this disability. 38 U.S.C.A. § 5110(a), (b)(2);
38 C.F.R. § 3.400(o).
Application to Reopen Claim of Service Connection for Hearing
Loss
In July 1989 the RO denied the veteran's claim of service
connection for bilateral hearing loss and notified him of the
denial in August 1989. Since the veteran did not complete
the appellate procedures necessary to put this claim in
appellate status, i.e., file a substantive appeal, the July
1989 decision is final. 38 C.F.R. §§ 20.200, 20.1103 (1998).
Thus, in order to reopen a claim of service connection, new
and material evidence must be submitted since the last final
disallowance of the claim (which in this case is the July
1989 decision). See 38 U.S.C.A. § 5108; Manio v. Derwinski,
1 Vet. App. 140 (1990); Evans v. Brown, 9 Vet. App. 273
(1998).
New and material evidence means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). In addition, for the purpose of determining
whether a case should be reopened, the credibility of the
evidence added to the record is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). There is no
requirement, however, that in order to reopen a claim, that
the new evidence, when viewed in the context of all the
evidence, both new and old, create a reasonable possibility
that the outcome of the case on the merits would be changed.
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly
rejecting the standard for determining whether new and
material evidence had been submitting sufficient to reopen a
claim set forth in Colvin v. Derwinski, 1 Vet. App. 171
(1991)).
In light of Hodge, in Elkins v. West, No. 97-1534 (U.S. Vet.
App. Feb. 17 1999) (en banc), and in Winters v West, No. 97-
2180, (U.S. Vet. App. Feb. 17 1999) (en banc) the United
States Court of Appeals for Veterans Claims (formerly the
United States Court of Veterans Appeals) (Court) set forth a
three-part test for the adjudication of previously denied
claims to which finality had attached. Under the new Elkins
test, the Secretary must first determine whether the veteran
has presented new and material evidence under 38 C.F.R.
§ 3.156(a) in order to have a finally decided claim reopened
under 38 U.S.C.A. § 5108. Second, if new and material
evidence has been presented, immediately upon reopening the
claim the Secretary must determine whether, based upon all
the evidence of record in support of the claim, presuming its
credibility, the claim as reopened is well grounded pursuant
to 38 U.S.C.A. § 5107(a). Third, if the claim is well
grounded, the Secretary may then proceed to evaluate the
merits of the claim, but only after ensuring that his duty to
assist under 38 C.F.R. § 5107(b) has been fulfilled. Elkins,
slip op. at 14-15; Winters, slip op. at 4.
When the RO denied the veteran's claim of service connection
for bilateral hearing loss in July 1989, it considered his
service medical records which showed normal (15/15) hearing
acuity in each ear for the whispered voice at both enlistment
and separation from service.
Following the July 1989 RO decision, the RO received
postservice medical evidence showing that the veteran has a
hearing loss. Such evidence includes a private medical
record dated in May 1988 in which the examiner stated that
the veteran had sensorineural loss probably aggravated by
past noise trauma. The evidence also includes a February
1996 VA examination report that contains a diagnosis of
bilateral hearing loss based on audiology findings which meet
the regulatory requirements for impaired hearing under
38 C.F.R. § 3.385 (1998). Such evidence is new in that it
has not been previously considered. It also bears directly
and substantially on a claim of service connection for
bilateral hearing loss since it establishes a current hearing
impairment and, by itself or in connection with the evidence
previously assembled, is so significant that it must be
considered in order to fairly decide the merits of the claim.
In sum, the evidence is both new and material. Having
determined that new and material evidence has been added to
the record, the veteran's claim of service connection for
bilateral hearing loss is reopened.
Well groundedness
As the veteran's claim has been reopened, the Board must now
immediately determine whether, based upon all the evidence of
record in support of the claim, presuming its credibility,
the reopened claim is well grounded pursuant to 5107(a).
Elkins; Winters.
Three types of evidence must be presented in order for a
claim for service connection to be well grounded: (1) a
medical diagnosis of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between an in-service injury or disease
and the current disability. Where the determinative issue
involves medical causation, competent medical evidence to the
effect that the claim is plausible is required. Epps v.
Gober, 126 F.3d at 1464, 1468 (Fed Cir 1997); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995).
As discussed above, the February 1996 VA medical report
reflects that the veteran has a current hearing impairment
and the 1988 private medical record relates the veteran's
hearing problems to "past noise trauma". In addition, the
veteran testified in 1998 that he had been exposed to loud
noise for extended periods of time as an infantry rifleman.
Based on this evidence, the veteran's claim is plausible and
capable of substantiation, and thus is well grounded within
the meaning of 38 U.S.C.A. § 5107(a).
ORDER
An effective date of February 27, 1994, for the assignment of
a 10 percent rating for service-connected tinnitus is
granted, subject to the law and regulations governing the
payment of monetary benefits.
The application to reopen a claim of service connection for
bilateral hearing loss is granted and this service connection
claim is well grounded; thus, it is subject further action as
discussed in the remand below.
REMAND
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet.App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instruction completely.
The veteran's presentation of a well grounded claim of
service connection hearing loss as discussed above invokes
upon VA the duty to assist him in developing the facts
pertinent to this claim. 38 U.S.C.A. § 5107(a). Such a duty
in this case requires that the veteran be afforded an
audiology examination to determine whether a causal
relationship exists between the veteran's current hearing
loss and service. Green v. Derwinski, 1 Vet. App. 121
(1991).
In addition, clarification should be obtained regarding the
veteran's receipt of Social Security Administration benefits.
In this regard, the veteran testified that he was retired
from his job as a wall paper hanger and painter. In August
1998 he submitted a letter from the Social Security
Administration addressed to him informing him about his
benefits. The veteran should be asked to clarify whether he
is receiving social security retirement benefits or social
security disability benefits. If he is receiving the latter
benefit, his Social Security Administration records should be
obtained. See Murincsak v. Derwinski, 2 Vet. App. 363
(1992).
Consideration must also be given as to whether any additional
development is required in order to ensure that the veteran's
procedural rights are protected so far as his being given
adequate notice and the opportunity to present evidence on
the underlying question of service connection. Bernard v.
Brown, 4 Vet. App. 384 (1993).
Lastly, it should be pointed out that the veteran filed a
timely notice of disagreement with the RO's assignment of a
10 percent rating for tinnitus. This is evident based on a
substantive appeal (VA Form 9) that the veteran filed in July
1996 in relation to his earlier effective date claim. In
this appeal the veteran "disagree[d] with the 10% service
connected disability rating." VA Regulation requires that
after a valid notice of disagreement has been filed by the
veteran or his representative, the RO is required to prepare
a statement of the case on the matter. 38 C.F.R. §§ 19.26,
19.29. In this regard, while the RO sent the veteran a
letter in October 1998 informing him that no further action
was required in this matter because the 10 percent rating is
the maximum rating allowable by law for tinnitus, this
notification does not meet the regulatory requirements of a
valid statement of the case noted under § 19.29. In
fulfillment of the veteran's due process rights, the RO must
issue him and his representative a statement of the case
regarding his appeal of the assignment of a 10 percent rating
for tinnitus.
Based on the foregoing, this case is REMANDED to the RO for
the following action:
1. The veteran should be contacted and
asked to clarify whether he is in receipt
of social security disability benefits or
social security retirement benefits. It
he is receiving the latter benefit, his
social security records should be
obtained.
2. The veteran should undergo a VA
examination for his bilateral hearing
loss. All appropriate tests deemed
necessary should be performed. The
examiner should be asked to state whether
it is at least as likely as not that the
veteran's bilateral hearing loss is
related to events in service. The claims
file and a copy of this remand should be
made available to the examiner prior to
the examination. A notation to the
effect that this record review took place
should be included in the examination
report.
3. The RO should issue the veteran and
his representative a statement of the
case regarding the veteran's disagreement
with the February 1996 assignment of a 10
percent rating for service-connected
tinnitus following the provisions of
38 C.F.R. § 19.29.
4. Thereafter, the RO should take
adjudicatory action on the substantive
question of service connection for
bilateral hearing loss. Any additional
development deemed necessary should be
undertaken. If the benefit sought is not
granted, a supplemental statement of the
case should be issued.
After the veteran and his representative have been given an
opportunity to respond to the statement of the case and
supplemental statement of the case as outlined above, the
claims file should be returned to this Board for further
appellate review, if in order. No action is required of the
veteran until he received further notice. The purposes of
this remand are to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
G. H. SHUFELT
Member, Board of Veterans' Appeals
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